Judgment : 1. Heard Shri Mundra, the learned counsel for the appellants; and Shri Vyas, the learned counsel for the respondents. 2. Regular Civil Suit No.295 of 1982 filed by one Sonuji Maharuji Raut, who expired during the pendency of this second appeal, was decreed by the Trial Court by its judgment and order dated 29-8-1985, holding that he has proved the title over the suit house and a decree for delivery of vacant possession of the suit premises was passed against the original defendants, who are the respondent Nos. 6, 7 and 8 herein. 3. In Regular Civil Appeal No.24 of 1987 preferred by the respondent Nos. 6, 7 and 8, the learned Additional District Judge, Gondiya, set aside the decree passed by the Trial Court, holding that the respondent No.6 Smt. Mankuwar Choudhari has legal right to remain in possession of the suit house. The appellants before this Court have purchased the suit property during the pendency of Regular Civil Appeal No.24 of 1987 from the original plaintiff Sonuji Maharuji Raut. The appellants were added as the respondent Nos. 2, 3 and 4 in Regular Civil Appeal No.24 of 1987 preferred by the respondent Nos. 6, 7 and 8/original defendants. Hence, the appellants are before this Court challenging the reversal of decree by the Appellate Court. 4. This appeal was admitted by this Court on 30-4-1998 on the substantial questions of law as are stated in ground Nos.4 to 6, which are reproduced below:- “(4) Whether it is open to a court to grant a relief to the defendants on the basis of the defence which has no foundation in the pleadings and the other side has no opportunity to meet it? (5) Whether the lower appellate Court was right in not considering that the twin defence raised by the original defendants/present respondents 6 to 8 before the trial Court was contradictory in nature and whether it could stand together in law? (6) Whether the lower appellate Court was justified in not holding that the respondent Nos. 6 to 8/original defendants had failed to prove their title over the suit property, especially when there was no evidence on record to show that the defendant No.1/Smt.Mankuwar had constructed the house with her and her husband’s funds?” 5. Undisputedly, the appellants in this second appeal are neither the original plaintiffs nor the original defendants. 6 to 8/original defendants had failed to prove their title over the suit property, especially when there was no evidence on record to show that the defendant No.1/Smt.Mankuwar had constructed the house with her and her husband’s funds?” 5. Undisputedly, the appellants in this second appeal are neither the original plaintiffs nor the original defendants. The decree for possession in Regular Civil Suit No.295 of 1982 was passed in favour of the original plaintiff Sonuji Maharuji Raut, who sold the property during the pendency of Regular Civil Appeal No.24 of 1987, to the appellants herein. During the pendency of Regular Civil Appeal No.24 of 1987, the original plaintiff expired. Hence his legal heirs are brought on record, and they are the respondent Nos.1 to 4 herein. The Appellate Court has reversed the decree passed by the Trial Court. 6. During the pendency of Regular Civil Appeal No. 24 of 1987, the respondent Nos.6, 7 and 8/ original defendants filed an application Exhibit 40 for addition of parties to the appeal as the respondents. The said application is reproduced below: “IN THE COURT OF ADDITIONAL DISTRICT JUDGE GONDIYA R.C.A.NO. 24/87 Mankuwar& others versus Kamlabai & others APPLICATION FOR ADDITION OF PARTY TO THE APPEAL AS RESPONDENTS. The appellant begs to apply as under:-1/ That, the appeal is fixed today for argument. 2/ That, it is recently transpired to the appellants, that the deceased plaintiff/Respondent Sonuji, transferred the part of the subject matter in dispute vide Reg. Sale-deed dt. 19.5.1985 to Manohar s/o Yadoraoji Belge aged 45 years, occ. Business. r/o Deshbandhu Ward Gondiya, Tah. Gondiya, Dist. Bhandara. That, similarly, the deceased plff/respondent Sonuji transferred the remaining part of the suit property vide reg. Sale-deed dt. 19.5.84, to Ravindra Yadoraoji Belge aged 36 years occ. Business, r/o Deshbandhu Ward Gondiya, tah. Gondiya, Dist. Bhandara. That, vide Reg. Sale-deed dt. 5.3.91, the said Manohar Belge and Ravindra Belge transferred the suit property to Rasid s/o Abdul Karim aged 50 years occ. Commission Agent r/o Nehru Ward, Civil lines, Gondiya. The appellants, learnt about these facts recently and they obtained the certified copies of the said documents. Thus the said transfers are being during the pendency of the suit as well as of the appeal, hence they are illegal and void. Hence the above stated persons are necessary parties to the suit. Commission Agent r/o Nehru Ward, Civil lines, Gondiya. The appellants, learnt about these facts recently and they obtained the certified copies of the said documents. Thus the said transfers are being during the pendency of the suit as well as of the appeal, hence they are illegal and void. Hence the above stated persons are necessary parties to the suit. Prayer: It is, therefore, prayed that this Hon’ble court be pleased to add the above stated purchasers as Respondent No.4 to 5 in the appeal and oblige. Gondiya, Dt. 7.8.1995. Appellants Verification Verified that the contents of the paras 1 to 3 are true to my knowledge and after understanding them as explained to me in Marathi, I have signed them at Gondiya on dt. 7.8.1995. Appellants” This application was allowed by the learned Judge of the Appellate Court by an order dated 7-8-1995, holding that the purchasers have become necessary parties to the appeal. Accordingly, the appellants herein were joined as the respondent Nos.2, 3 and 4 to the said Regular Civil Appeal No.24 of 1987. The appeal was contested accordingly by the present appellants. The Appellate Court has reversed the decree passed by the Trial Court and the suit has been dismissed. 7. In the background of the aforesaid undisputed factual position, Shri Vyas, the learned counsel for the respondents/original defendants, has raised a preliminary objection that the present appeal at the instance of the appellants is not maintainable, as they were joined as proformarespondents to Regular Civil Appeal No.24 of 1987. According to him, the original plaintiff has accepted the decision of the Appellate Court and has not preferred any appeal. He has relied upon the following decisions in support of his proposition: 1] NirmalSingh v. Zamir Uddin Khan and others -AIR 1937 Allahabad 368. 2] NandLal Pal v. NareshChandra Deb Goswami and others – AIR 1917 Patna 585. 3] Thammannav. K. Veera Reddy and others - (1980) 4 SCC 62 ). 4] DhannaSingh and others v. BaljinderKaur and others - (1997) 5 SCC 476 ). 8. Shri Mundra, the learned counsel appearing for the appellants, has urged that the appellants have stepped into the shoes of the original plaintiff, as they have been joined as necessary parties to Regular Civil Appeal No. 24 of 1987 at the instance of the original defendants, and hence the appeal at the instance of the present appellants is maintainable. 8. Shri Mundra, the learned counsel appearing for the appellants, has urged that the appellants have stepped into the shoes of the original plaintiff, as they have been joined as necessary parties to Regular Civil Appeal No. 24 of 1987 at the instance of the original defendants, and hence the appeal at the instance of the present appellants is maintainable. He has relied upon the provisions of Sections 100 and 146 of the Civil Procedure Code and Order XXII, Rule 10 therein along with the order dated 7-8-1995 passed by the Appellate Court below Exhibit 40. He has also relied upon the following decisions of the Apex Court: 1] AmitKumar Shaw and another v. FaridaKhatoon and another – AIR 2005 SC 2209 . 2] DevendraKumar Sarewgee and others v. PurbanchalEstate (P) Ltd. and others - (2006) 9 SCC 199 ). 9. In view of above, the question, which falls for consideration, is whether the present second appeal at the instance of the appellants, who are neither the plaintiffs nor the defendants but were joined as the respondent Nos.2, 3 and 4 to Regular Civil Appeal No. 24 of 1987, decided by the Appellate Court on 28-8-1996, is maintainable. 10. The contention of Shri Vyas for the respondents/original defendants is that for maintaining this second appeal, there has to be a leave obtained from this Court for filing an appeal, for the reason that the appellants were neither the plaintiffs nor the defendants in the original civil suit. It is not in dispute that the present second appeal was admitted by this Court on 30-4-1998. In view of this, it is implicit that the appellants are permitted by this Court to prefer an appeal. 11. Section 100(1) of the Civil Procedure Code, being relevant, is reproduced below: “100. Second appeal. It is not in dispute that the present second appeal was admitted by this Court on 30-4-1998. In view of this, it is implicit that the appellants are permitted by this Court to prefer an appeal. 11. Section 100(1) of the Civil Procedure Code, being relevant, is reproduced below: “100. Second appeal. – (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.” The aforesaid provision provides a right of appeal to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. Such an appeal can be preferred by any person, who is aggrieved by any decree passed by the Court subordinate to the High Court, subject to the condition that such a person satisfies the High Court that the case involves a substantial question of law. It cannot, therefore, be said that the appeal under Section 100(1) of the Civil Procedure Code is maintainable only at the instance of the original plaintiff or at the instance of the original defendants, who are aggrieved by the decree passed either by the Trial Court or by the Appellate Court. 12. Order XXII, Rule 10 of the Civil Procedure Code, being relevant, is reproduced below: “Order XXII, Rule 10 – Procedure in case of assignment before final order in suit. – (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).” The appellants have acquired the interest in the suit property by way of purchase from the original plaintiff and hence they are the representatives-in-interest of the original plaintiff. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).” The appellants have acquired the interest in the suit property by way of purchase from the original plaintiff and hence they are the representatives-in-interest of the original plaintiff. As has been held earlier, this Court by admitting appeal is deemed to have granted leave, as contemplated. They are, therefore, covered by Order XXII, Rule 10 of the Civil Procedure Code, having stepped into the shoes of the original plaintiffs. The instant second appeal is, therefore, maintainable at the instance of the present appellants. 13. In the decision of the Apex Court in the case of DevendraKumar Sarewgee and others v. PurbanchalEstate (P) Ltd. and others, cited supra, it has been held in para 11 that Order 22, Rule 10 CPC confers a discretion on the court hearing the suit to grant leave to the person in or upon whom such interest has come to vest or devolve to be brought on record. Undisputedly, it is only on the application Exhibit 40 filed by the original defendants in Regular Civil Appeal No.24 of 1987 that the appellants have been joined as the necessary parties to the said appeal. Hence, they cannot be deprived of their right to file the second appeal to get the decree passed by the Appellate Court set aside. 14. The decisions relied upon by Shri Vyas for the respondents/original defendants are distinguishable on the facts and it is not the law laid down in any of those decisions that an appeal at the instance of the representative-in-interest of the plaintiff is not maintainable. Hence, the contention based upon the said decisions is rejected. 15. Now coming to the merits of the matter, the Appellate Court has not addressed itself to the issues, which have been decided by the Trial Court. Point No.(1) framed by the Appellate Court was whether defendant No.1 Mankuwar has a legal right to remain in possession of the suit house. This is a point which need to be pleaded and proved by leading evidence. This point was neither raised before the Trial Court, nor it has been decided by it. It was not raised by the defendant No.1 even by making a counterclaim of title in respect of the suit property. This is a point which need to be pleaded and proved by leading evidence. This point was neither raised before the Trial Court, nor it has been decided by it. It was not raised by the defendant No.1 even by making a counterclaim of title in respect of the suit property. The appellate Court could not have gone into this question. Hence, the substantial question of law at Sr.No.(4) is answered accordingly, holding that no relief could have been granted by the appellate Court to the defendants. 16. Moreover, the Appellate Court has recorded a categorical finding that the defendant No.1 has failed to establish the ownership over the suit house. It has also been held that there is no finding on record to show that the defendant No.1 carried on the construction over the suit plot with her own expenses. The plea of adverse possession raised by the original defendants, has also been rejected by the Appellate Court. In the absence of there being any evidence on record, the Appellate Court has committed an error of law in holding that there was a licence created by the original plaintiff in favour of the original defendant No.1 Mankuwar. In view of this, the approach of the Appellate Court is totally perverse, as it is based on conjectures and surmises. It cannot, therefore, be sustained. Thus, the substantial questions of law, as are framed by this Court at Sr.Nos. (5) and (6), are answered accordingly. 17. In the result, the second appeal is allowed. The judgment and decree dated 28-8-1996 passed by the learned Additional District Judge, Gondiya, in Regular Civil Appeal No.24 of 1987, is hereby quashed and set aside, and the judgment and decree dated 29-8-1985 passed by the learned Joint Civil Judge, Junior Division, Gondiya, is restored. No order as to costs. 18. At this stage, Shri Vyas for the respondents prays for stay of the judgment passed by this Court so as to enable him to adopt appropriate remedies in the matter. However, in the light of the controversy decided by this Court, I do not find any reason to stay the effect and operation of this judgment. The prayer is, therefore, rejected.